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The Meaning of Property: Freedom, Community, and the Legal Imagination
The Meaning of Property: Freedom, Community, and the Legal Imagination
Jedediah Purdy
Yale University Press, 2010
240 pp., 28.00

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Eugene McCarraher

The Command Economy of Freedom

Sacrifice thy neighbor.

Do good fences really make good neighbors? From Winstanley and Rousseau to Marx and Kropotkin, a lineage of modern thinkers has suspected that "property is theft," as Proudhon declared. Even some of the most revered ideologists of property have been unsure of its legitimacy. Take Sir William Blackstone, the eminent 18th-century English jurist and the Aquinas of modern property law. In his Commentaries, Blackstone pronounced that the right of property is the "sole and despotic dominion which one man claims and exercises over the external things of the world." Yet, less than a page later, Blackstone mused that the tyranny of property depended on willful historical amnesia. "We seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title." The rights of property depend on the erasure of historical memory, a repression of the political unconscious.

Jedediah Purdy lifts the repression—but only in part, thus obscuring the memory. Now an associate professor of law at Duke, Purdy debuted over a decade ago with For Common Things (1999), a heartfelt rumination on the triumph of irony and the virtue of ardent commitment. But in this most recent book, a turgid study of property law, Purdy trades passion for pedantry, grinding out the occasional paragraph in which every sentence is capped with an endnote. To be sure, Purdy is informative, ranging over the Putney Debates of 1647, civic republicanism, John Locke, Adam Smith, legal realism, American waste law, welfare economics, microfinance, and intellectual property. But when he mangles the language with technocratic twaddle—"rational maximization of legal actors' preference satisfaction"—you really want to kill all the lawyers.

Still, Purdy aspires to help us "revise our preferences, values, and commitments." Among those "commitments" in need of "revision" is what Purdy calls "liberal property," the dominant conception of property in Anglo-American law as "sole and despotic dominion." This understanding of property as the basis of "a world of self-owning agents" is invaluable but inadequate, Purdy argues. In his view, a less prominent but equally indispensable feature of "liberal property" has promoted mutuality and other civic virtues. Tracing a pedigree of jurists, philosophers, and economists—Blackstone, Adam Smith, Amartya Sen, contemporary theorists of the "digital commons"—Purdy maintains that the "freedom" affirmed in liberal property embraces more than individual liberty and instrumental rationality. By enforcing the pursuit of rational self-interest, property fosters imaginative sympathy, cooperation, and community, producing people who are "more rather than less sensitive to the world's range of value."

Yet if Purdy shows that "liberal property" is a vision of community, he occludes the memory of acquisition. Liberal property, he tells us, is "intimately tied to markets," and by "markets" I presume he means capitalism, since he writes of interdependent individuals as "competitors and collaborators." It's common to equate "markets" with capitalism, but it's also profoundly misleading and ideological. Capitalism is not "markets" but a system of property relations unprecedented in history. What distinguishes capitalism from all earlier forms of production—chattel slavery, feudalism, etc.—is that direct producers are both propertyless and legally free; their only access to the means of production is through the sale, for a wage, of their capacity to labor. The owners of productive resources appropriate the product of workers' labor without any direct coercion. At the same time, despite the vernacular of "freedom" ("free enterprise," "opportunity," etc.), capitalist property is a bundle of imperatives: competition, profit-maximization, reinvestment of surpluses in production, increase of labor productivity, development of technology. As the enforcer of these imperatives, markets play a distinctive role in capitalism that they do not play in other economies: they function, not only as simple mechanisms of exchange, but as regulators of access to the very means of labor and social reproduction. Capitalism is a command economy of freedom.

Like other celebrants of the "freedom" and "innovation" wrought by capitalism, Purdy wants to think that the eggs in his omelet consented to being cracked.

Purdy's defense of "liberal property" misfires because he fails to see capitalism as a coercive form of property relations. His discussion of Locke is illustrative. He rehashes the familiar wisdom about Locke's "labor theory" of property, in which the right to possession derives from "mixing" one's labor with the material world. But Purdy misses what is truly distinctive, not only about Locke's account, but about almost all modern conceptions of property. As two key passages in the Second Treatise demonstrate—and neither of which Purdy cites—Locke saw no direct connection between labor and property. Indeed, Locke derives a right to property, not from "mixing labor," but from generating exchange value and profit. An unimproved acre of land in America may be as fertile as an acre in England, he grants, but it is not worth 1/1000th of the English acre, if we determine "all the Profit an Indian received from it were it valued and sold here." The labor and use value for the Indian—feeding himself and his family—is of no importance to Locke.

Elsewhere, Locke writes that "the Tufts my servant has cut, and the Ore I have digg'd … become my Property." What is remarkable about that sentence is how Locke equates his own digging with his appropriation of his servant's labor. In other words, the landlord who "improves" land, even with someone else's labor, is being just as—or even more—industrious than the servant who is doing his bidding. (Think of how business journalists talk about "producers" or "manufacturers" today. They're certainly not talking about the workers on an assembly line.) Articulating an emerging consensus among agrarian landlords (such as Locke's patron, Lord Shaftesbury), this account of property sanctioned the dispossession of Native Americans, Irish, and other "unimproving" peoples. Locke and other Englishmen—like the Puritans, Protestant conquistadors of New England—justified their eviction, slaughter, or enslavement of indigenous peoples by referring to their wasteful, i.e., non-profit-making, property systems. (Locke, by the way, invested in the slave trade, and wrote a semi-feudal constitution for the Carolina colonies that protected slavery.)

Purdy's narrative is innocent of references to confiscation, enclosure, or genocide, though we get a few acknowledgments of imperialism in North America, Algeria, and India. I'm sure that he knows this history; but because he doesn't connect this long and sordid tale to the imperatives of capitalist property, his account of the liberal legal imagination is seriously truncated and misleading.

The blood on the deed to capitalist property was no secret to Chief Justice John Marshall, whose decision in Johnson v. M'Intosh (1823) is at once the most candid and the most enigmatic document in the history of American jurisprudence. Marshall ruled that Indian tribes did not have full ownership of their land while at the same time acknowledging the memory of eviction and ethnic cleansing: "Conquest gives a title which the Courts of the conqueror cannot deny." Might literally makes right, in the view of our most esteemed Supreme Court Justice. Conceding that his blanket dismissal of tribal claims "may be opposed to natural right and to the usages of civilized nations," Marshall nonetheless concluded—somewhat ruefully, as Purdy notes—that Indians were "a people with whom it was impossible to mix" on account of the impediment they posed to progress, i.e., the capitalist production of wealth. Thus, there is nothing at all "ironic," as Purdy believes, in the fact that Marshall's imprimatur on Indian dispossession stemmed from a "freedom-promoting view of property."

Purdy comes close to grasping the capitalist nature of modern property in his discussion of the lawyer and economist Robert Lee Hale. A "legal realist" who focused on concrete social life rather than legal abstractions, Hale, in Purdy's words, "described economic life as a system of mutual coercion." Owners try to extract the most favorable terms from non-owners, and "the threat of exclusion enables them" to do so. (Hale's contention that non-owners' withholding of labor also constitutes "coercion" strikes me as preposterous.) Through Hale, Purdy asserts that markets are "systems of unequal power"; and then, true to form, he misses the implications. The laissez-faire that Hale challenged prohibited "overt coercion," Purdy writes, and that interdiction was the "moral core" of "an idea of democratic community." True enough, but as Hale perceived, that "democratic community" retained property relations with a covert form of coercion: you're free to accept my terms of employment, or starve. Under capitalism, if you're not an owner, you get to choose your master.

Like other celebrants of the "freedom" and "innovation" wrought by capitalism, Purdy wants to think that the eggs in his omelet consented to being cracked. Industrial workers succumbed to forces "they could not control," he observes; but while he urges that we do all we can to protect the unemployed and disinherited, he adds that they agreed to their own demise. "By embracing creative destruction, we decide … to make economic sacrifices of those who become obsolete." Who's "we," Professor Purdy? Oh that's right, it's one dollar, one vote—what could be more democratic? Under the regime of liberal property, capital sponsors a democracy of dollars—and a war of all against all, as everyone fights to avoid the fate that awaits the obsolescent. Sacrifice thy neighbor.

Eugene McCarraher is an associate professor of humanities and history at Villanova University. He is completing The Enchantments of Mammon: Corporate Capitalism and the American Moral Imagination. He is also working on a collection of essays on theology and socialism.

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